LANDLORD TENANT CHAPTER 4: SECURITY DEPOSITS. LT:4-1. Definitions

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1 CHAPTER 4: SECURITY DEPOSITS LT:4-1. Definitions LANDLORD TENANT For purposes of this Chapter: Landlord means a person who leases real property to another and either owns or has the rights of an owner to that real property, including (i) a legal entity or representative who acquires or succeeds to the rights of the landlord, (ii) a landlord or lessor pursuant to a sublease, and (iii) a landlord s agent as defined below. Landlord s agent means a person, designated by and acting on behalf of a landlord, to whom a security deposit has been entrusted. Lease means an agreement setting forth the rights, duties and obligations that govern a tenancy. Reference to lease in this Chapter includes a lease, contract or agreement as those terms are used in the common law. Owner-occupied premises means a building of more than one residential unit, at least one unit of which is legally occupied by a landlord as the landlord s place of residence. Person means an individual, corporation, company, agency, association, society, firm, limited liability company, limited liability partnership, partnership, joint stock company or any other legal entity, unless restricted by the context to one or some of the above. Rental premises or premises means real property used or occupied by a tenant in accordance with a lease and may include one or more rental units as well as areas to be used in common with other tenants. Security deposit means money deposited to secure the tenant s performance under the lease and to compensate or reimburse a landlord for any breach of the lease attributable to the tenant, including non-payment of rent and physical damage to the rental premises. Tenant or lessee means a person who leases real property from another and may include a legal entity or representative who acquires or succeeds to the rights of the tenant. Source: New LT:4-2. Application of Chapter This Chapter shall apply to all rental premises intended to be used for residential purposes except: a. owner-occupied premises in which the owner also rents either one or two rental units for residential purposes, unless the tenant, at any time during the tenancy, provides written notice to the landlord invoking this Chapter and gives the landlord 30 days to comply. b. real property used as living quarters for a period of 125 consecutive days or less by a person having a permanent place of residence elsewhere unless the real property is rented or used for residential purposes for seasonal, temporary or migrant farm workers in connection with any 1

2 work or place where work is being performed. The landlord shall have the burden of proving the nature of the use of the real property in accordance with this subsection. c. public assisted rental housing that is governed by Chapter X of this Title. Source: 46:8-26; 46:8-19. LT:4-3. Amount of security deposit As part of the lease, a landlord may require a security deposit for the rental of real property used for residential purposes in an amount not to exceed one and one half times the monthly rent, whether paid in one lump sum or by installments. Any amount collected thereafter as additional security in the event of a rent increase shall not be greater than 10 percent of the then current security deposit. Source: 46: LT:4-4. Investment of security deposit a. Until repaid or applied in accordance with the lease and this Chapter, a security deposit, including accrued interest or earnings, shall continue to be the property of the person who made the security deposit and shall be held in trust by the landlord. A security deposit shall not be mingled with the property or become an asset of the landlord. However, security deposits for one or more tenants may be deposited or invested in one account so long as the landlord complies with the other provisions of this Chapter. b. Security deposits for a total of 10 rental units or more shall be deposited or invested as follows: (1) in shares of an insured a money market fund insured by the Federal Deposit Insurance Corporation or its successor entity and established by an investment company based in this State and registered under the "Investment Company Act of 1940," 54 Stat. 789 (15 U.S.C.s.80a-1 et seq.) whose shares are registered under the "Securities Act of 1933," 48 Stat. 74 (15 U.S.C.s.77a. et seq.) and the only investments of which fund are instruments maturing in one year or less, or (2) in a depository account at a State or federally chartered bank, savings bank or savings and loan association in this State insured by the Federal Deposit Insurance Corporation or its successor entity an agency of the federal government and bearing a variable rate of interest that is (i) established at least quarterly; and (ii) similar to the average rate of interest on active interest-bearing money market transaction accounts paid by such institutions or equal to the interest paid by an investment company as described in subsection b.(1). c. Security deposits for less than a total of 10 rental units shall be deposited, unless otherwise required by the Commissioner of Banking and Insurance, in a State or federally chartered bank, savings bank or savings and loan association in this State insured by an agency of the federal government in an account bearing interest at the rate currently paid by such institutions and associations on time or savings deposits. The Commissioner shall require that security deposits for less than a total of 10 rental units be invested in accordance with subsection b. upon finding it practical to do so. 2

3 d. A landlord shall be required to deposit or invest any security deposit received in accordance with this section within two weeks of its receipt immediately after the landlord receives the security deposit and any information required in accordance with section LT:4-5. Source: 46:8-19. LT:4-5. Tenant cooperation to invest security deposit A tenant shall comply with all reasonable requirements procedures required by law of the depository institution where the security deposit is to be invested, including compliance with State and federal laws regulating depository and investment accounts. The landlord shall have the burden of proving that these requirements were made known to the tenant. A tenant who fails to comply with the requirements made known to the tenant shall not be paid or credited any interest or earnings in accordance with this Chapter. Source: New LT:4-6. Notification of investment of security deposit a. A landlord shall give written notice of a deposit or investment required in accordance with section LT:4-4 to each tenant, or if more than one tenant at the same rental premises, to one of the tenants, after the deposit or investment is first made and as otherwise provided in this Chapter. If the person who made the security deposit is a public agency, then the notice shall also be given to that public agency. If a deposit is made in installments, written notice shall be given upon the deposit or investment of each installment. b. The notice required by this section shall identify (i) the name and address of the investment company, State or federally chartered bank, savings bank or savings and loan association in which the deposit or investment is made, (ii) the type of account, (iii) the account number; and (iv) the current rate of interest; and (v) the amount of money deposited or invested. Notice shall be given: (1) within days after the receipt deposit or investment of the security deposit, or deposit or investment of any installment thereof, and each transaction thereafter in the account where the security deposit is deposited or invested, except that no notice shall be required for the periodic posting of interest for any period less than annually; (2) within 30 days after transfer of the security deposit from one depository institution or fund to another, except that in the case of a merger of institutions or funds, within 30 days of the date that the landlord receives notice of that merger; (3) within 30 days after transfer of the security deposit from one account to another account if the change in the account or institution occurs more than 60 days prior to the date for payment of annual interest to the tenant in accordance with section LT:4-7 a; (4) simultaneously with each annual interest payment either paid or credited to the tenant or public agency in accordance with section LT:4-7 a.; (5) within 30 days after the conveyance of the rental premises in accordance with section LT:4-9. Source: 46:

4 LT:4-7. Accrued interest or earnings for security deposit; disposition a. The accrued interest or earnings from the investment of a security deposit shall be paid to the tenant, or if the person making the deposit was a public agency, to that public agency, in cash, or at the option of the landlord, shall be credited toward the payment of rent due, as of the annual anniversary date of the tenant's lease, or as of January 31 immediately following the creation of the tenancy and in each succeeding year, whichever is later. b. Subject to the requirements of subsection c., if a landlord does not comply with sections LT:4-4 or LT:4-6, a tenant may give written notice to the landlord that the security deposit and an amount representing interest at the rate of 7% per annum be applied to the rent due or to become due from the tenant. Thereafter, the tenant shall be without obligation to make and the landlord shall not be entitled to demand any further security deposit. Interest required by this subsection shall be calculated from the date that the landlord fails to comply with this Chapter. c. If the annual interest is not paid or credited in accordance with LT:4-7 a., or the annual notice not provided in accordance with section LT:4-6 b. (4)., unless the annual notice is also serving as a notice of change of account or institution, before a tenant may apply the security deposit plus interest to rent due, the tenant shall (i) give written notice to the landlord of the failure to comply and (ii) allow 30 days from the mailing date or hand delivery of the notice for compliance. Source: 46:8-19. COMMENT It has been brought to Staff s attention that in the course of amending section 46:8-21.1, the bill drafters intended to assist public agencies with the recovery of deposits wrongly withheld from tenants. However, it was intended by this amendment that agency involvement was to ensure the deposit is returned to the tenant, and not to the agency which only acts on behalf of the tenant. Accordingly, all references to a deposit or notice of a deposit being returned or given to the public agency have been deleted. LT:4-8. Regulations If the security deposit is deposited or invested in an account or in shares for which the interest varies on a periodic basis, the Commissioner of Banking and Insurance may promulgate regulations to establish the method of computing the interest due to the tenant in accordance with this Chapter. Source: 46: COMMENT Recent amendment to the current statute provides that the tenant is to receive all of the interest from a security deposit. Therefore, the source provision no longer has any purpose and this proposed new section should not have been included in the revision. LT:4-9. Procedure on conveyance of property a. A landlord shall turn over a security deposit and the accrued interest or earnings upon conveyance of the rental premises in the following manner: 4

5 (1) to the purchaser upon sale at the time of closing, either directly, or by a credit against the purchase price in which case the purchaser shall comply with this Chapter as though the purchaser had received the funds directly from the tenant; or (2) to the grantee or assignee of the landlord s interests upon assignment of the lease within five days after delivery of the instrument of assignment; or (3) to the grantee or purchaser upon a mortgage foreclosure sale within five days after delivery of the deed; or (4) to the person taking title to the rental premises upon the insolvency or bankruptcy of the landlord within five days after the making and entry of an order discharging the receiver or trustee. b. Written notice of the turnover, including the information required in section LT:4-6 b., together with the name and address of the person to whom the rental premises is conveyed, shall be provided to a tenant by personal delivery, commercial courier service, or registered or certified mail. c. At the time of the conveyance described in subsection a., the person to whom the rental premises is conveyed shall be obligated to obtain from the landlord any security deposit that the landlord received from a tenant or previous landlord and was required to be invested by this Chapter, plus the accrued interest or earnings, and shall comply with this Chapter as though the deposit had been received directly from the tenant. A successor landlord shall return a deposit, plus the accrued interest or earnings, to the tenant. Source: 46:8-20. LT:4-10. Release from liability on transfer a. A landlord shall be relieved from liability to a tenant for the repayment of a security deposit and accrued interest or earnings that are turned over in accordance with section LT:4-9. b. Regardless of whether a Even if a security deposit is not transferred at time of conveyance in accordance with LT:4-9, the person to whom the rental premises is conveyed is responsible for investing the security deposit, giving notice and paying interest in accordance with this Chapter, and for returning the security deposit, plus any accrued interest or earnings, in accordance with the lease and this Chapter, unless before expiration of the lease term, the security deposit and the accrued interest or earnings are again turned over in accordance with section LT-4:9. Source: 46:8-21. LT:4-11. Return of security deposit; termination of lease; vacancy of tenant a. For purposes of this section, the terms (i) net sum shall mean a security deposit, plus accrued interest or earnings paid or credited to the tenant in accordance with LT:4-7, less any reasonable expenses chargeable to the tenant because of a breach of a lease that is attributable to that tenant; (ii) itemization shall mean a written statement of how a net sum was calculated, including a detailed list of the items added to and deducted from the security deposit; and (iii) 5

6 return of a net sum or itemization shall mean delivery by personal delivery, commercial courier service, or registered or certified mail. b. Within 30 days after a tenancy is terminated or a tenant compelled to vacate and surrender to the landlord possession of the rental premises by judgment or mutual agreement of the landlord and tenant, the landlord shall return to the tenant or to the public agency that made the deposit, the net sum, along with an itemization. Return shall be made to the tenant s last known address, if no other address is found after diligent good faith effort, or to the public agency at its current address. c. Within 30 days after a tenancy is terminated, in accordance with LT:x-x [46:8-9.1], because of the death of a tenant, the landlord shall return the net sum and itemization to the executor or administrator or other representative of the tenant s estate upon proof of that person s appointment and the appropriate address for return, or to the co-tenant at the address of the rental premises. d. Within 15 business days after a tenancy is terminated, in accordance with LT:x-x [New Jersey Safe Housing Act], because of the imminent threat of serious physical harm from another to the tenant or the tenant s child, the landlord shall make available and return upon demand the net sum and itemization in accordance with subsection f. If the tenant shares the rental premises with a co-tenant, only half the net sum shall be returned unless otherwise provided by the lease or by LT:x-x. e. Within five business days after a tenant vacates the rental premises because of fire, flood, condemnation or evacuation, the landlord shall make available and return upon demand the net sum and itemization in accordance with subsection f., provided that an authorized public official posts the premises with a notice prohibiting occupancy, or a building inspector, in consultation with a relocation officer, if applicable, certifies within 48 hours or a reasonable time thereafter that the prohibition of occupancy is expected to continue longer than seven days and so notifies the landlord in writing. f. Whenever a net sum under subsections d. or e. is required to be made available by a landlord for return upon demand, the landlord shall provide written notice to the tenant, within three business days after receiving notification of the tenant s having vacated the rental premises, that the net sum is available for return. The notice shall (1) include the days and hours when and the location in the same municipality as the rental premises where the net sum will be available, and (2) be provided, in the same manner as return of a net sum, to the tenant s last known address with a duplicate notice to the relocation officer or to the municipal clerk if no relocation officer is designated, unless the last known address of the tenant is the location from which the tenant has vacated and the mailbox of that address is not accessible during normal business hours, in which case the notice shall also be posted at each exterior public entrance of the vacated property. The landlord shall continue to make the net sum available for return upon demand at the location and during the normal business hours provided in the notice, or by mutual agreement with the municipal clerk, have the municipal clerk of the municipality in which the rental premises is located do so, for a period of 30 days. g. If the net sum made available in accordance with subsection f. is not demanded and returned to the tenant within the 30-day period, the landlord shall redeposit or reinvest the net sum in an appropriate interest bearing or dividend yielding account in the same investment 6

7 company, State or federally chartered bank, savings bank or savings and loan association from which it was withdrawn. Disposition of any unclaimed security deposit shall be made in accordance with the Uniform Unclaimed Property Act, N.J.S.A. 46:3B-1 et seq. h. In the event that no net sum is payable to a tenant or to a public agency that made the deposit, in accordance with this section, the landlord shall return a written detailed statement of the amount applied to the security deposit by the landlord to satisfy the breach alleged to be attributable to the tenant an itemization in the same manner as provided for the return of a net sum. i. Notwithstanding this section or any other law to the contrary, no deductions shall be made from a security deposit of a tenant who remains in possession of the rental premises. j. A tenant who resumes occupancy of the rental premises after return of a security deposit, shall redeliver to the landlord one-third of the original security deposit amount immediately, one-third in 30 days and one-third 60 days from the date of resuming occupancy. If any one of these payments is not made, the landlord may institute legal action for possession of the premises as the landlord would for nonpayment of rent. Source: 46: LT:4-12. Retroactivity; date of compliance A landlord who holds a security deposit made before January 1, 2004, must comply with the requirements of this Chapter. A landlord who purchased the leased premises before January 1, 2004 and did not obtain a security deposit made prior to that date is not required to comply with this Chapter with regard to that security deposit and a tenant who made a security deposit prior to January 1, 2004, whose deposit was not transferred to the grantee, assignee, or purchaser of or person taking title to the rental premises, shall not be required to make another security deposit. All actions taken after January 1, 2004 but prior to the effective date of this Chapter, and all actions taken after the effective date of this Chapter shall be in compliance with this Chapter. Source: 46: LT:4-13. Small claims jurisdiction of actions on security deposits less than $5,000 Notwithstanding any law or rule to the contrary, the Division of Small Claims of the Superior Court, Law Division, Special Civil Part shall have jurisdiction of actions between a landlord and tenant for the return of all or part of a security deposit in which the amount in dispute, including any applicable penalties, does not exceed the sum of $5,000, exclusive of costs. Source: 46: LT:4-14. Security deposit recovery, court action not required for tenant receiving financial assistance A tenant who receives financial assistance through any State or federal program, including welfare or rental assistance, shall not be required to file an action in court to recover 7

8 security deposits withheld by a landlord in violation of section LT:4-4 in order to continue participation in any such program. Source: 46: LT:4-15. Trust on insolvency or bankruptcy of person receiving security deposit The claim of a tenant who paid a security deposit to a landlord who is ordered insolvent or bankrupt by a court shall constitute a statutory trust with respect to any money so received and not previously expended in accordance with the lease or this Chapter. Source: 46:8-23. COMMENT Staff believes this proposed section is unnecessary in light of provisions of the current Act which clarify that the security deposit remains the tenant s property. LT:4-16. Waiver by depositor prohibited A lease provision permitting waiver of any provision of this Chapter is absolutely void. Source: 46:8-24. LT:4-17. Violations; double damages, attorney s fees and costs; civil penalties a. A court shall award double the amount of the net sum, as that term is defined in section LT:4-11 a., together with full costs of any action and, in the court s discretion, reasonable attorney s fees, to a tenant, executor, administrator or surviving spouse, or other person authorized to act on the tenant s behalf, who prevails in an action commenced for the return of money due under LT:4-11. b A public entity that made a security deposit on behalf of a tenant who received financial assistance through a State, county or federal program, including but not limited to welfare or rental assistance, may impose a civil penalty of not less than $500 or more than $2,000 for each offense against a landlord who, in violation of section LT:4-4, has willfully withheld or refused to invest the security deposit. This penalty shall be collected and enforced by summary proceedings pursuant to the Penalty Enforcement Law of 1999, N.J.S.A. 2A:58-10 et seq. The public entity which made such security deposit on behalf of the tenant shall be entitled to any penalty amounts recovered pursuant to such proceedings. Source: 46:21.1 8

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